A State Court Judge’s View on e-Discovery (Part One)

Are state court judges in Florida and elsewhere subject to what some have called an impending Tsunami, revolution, or paradigm shift? Will electronic discovery continue its relentless march into the hearing rooms and state courtrooms? Will it become a part of the cases state court judges handle every day: personal injury, family law, juvenile justice and dependency, felony and misdemeanor criminal cases, probate litigation, and many others? If so, some major preparations are in order for state court judges and the lawyers who appear before them. Having the time these days (I have “retired” to teaching and writing) and personal motivation to consider the impact of the emergence of electronic discovery on the delivery of justice in state court (namely Florida), I prefer to expound in a forum like this. Here my personal views may be considered and subjected to critical analysis by professionals with an interest in making our system of justice better and making themselves better at what they do.

My discussion will pertain to Florida state court judges and their milieu, which will likely translate to other state court judges in varying degrees. It is my view that adapting to electronic discovery by state court judges could be even more challenging than it has been in federal court. However, the advantages of the trailblazing federal court experience, and a growing national consciousness of the challenges of electronic evidence, can enlighten the Bar and judiciary. I feel the Florida and other state judiciary will be up to the task, but not without formal education, self-education, and assistance from those who appear before them. I would like to pass along some practical suggestions on dealing with electronic discovery issues before state court judges. Finally, having vicariously observed the past and recent federal experience with electronic discovery and discovery sanctions, I have a few thoughts on how dealing with professional and procedural transgressions may play out in state court, particularly Florida.

My eDiscovery Background

Before I start, you may want to know some relevant personal background to determine for yourself whether I am qualified to opine on these matters. After 24 years as a civil trial lawyer, in 2001 I was appointed as a Florida state court circuit judge, which is by broad definition a judge with general jurisdiction over civil, criminal, juvenile dependency, juvenile criminal, and family law matters. When I first began studying eDiscovery in 2004, I was assigned in the circuit civil division (my fave), which is the broadest jurisdiction for a Florida trial judge. I was also heavily involved in education of lawyers and judges, as a past-Chair of the Board of Legal Specialization and Education of the Florida Bar, which certifies lawyers as specialists and oversees credit and accreditation for Florida Bar continuing legal education, and a past-Chair of the Florida Bar CLE Committee. I was (and still am) an instructor in the Florida Judicial Colleges. One favorite topic that I taught Florida lawyers and judges was the then emerging field of “eDiscovery.”

In 2004, eDiscovery law was much less defined than it is now that we have the benefit of federal rules and numerous enlightened and valuable decisions of federal judges and magistrates and state court judges. The effort in those days was learning and teaching generally how to apply existing discovery rules, common law, and policy behind the law to this incredibly complex and exponentially changing body of information that was foreign to almost all state court judges and lawyers. We were trying, as Ralph Losey recently said we must do, to “adopt new ways of looking at information and evidence in the judicial context” of Florida state courts. See Losey, R., Electronic Discovery: New Ideas, Case Law, Trends, and Practices at p. 7 (2010). But, as a legal educator, which was in my opinion an important adjunct to my judicial “day job,” I faced the challenge of learning complex subject matter well enough to teach it to a rather uninitiated and sometimes resistant audience of lawyers and judges who did not grow up in the digital age, but instead had the digital age imposed upon them. Most judges and lawyers were not particularly fond of the idea that there was a vast new legal area of which they knew little that was destined to revolutionize how information was obtained and processed in the judicial context. Needless to say, the messenger (me) was sometimes daunted but never stopped.

My learning process, fortunately, took me early on to the Sedona Conference® materials and some direct assistance from Ken Withers, which I much appreciated. Along the way, I also tapped the Federal Judicial Center for resources, such as David Isom’s Primer for Judges and the useful Pocket Guide for Judges. Beyond that, there was a wealth of emerging information, which I did my best to cull through and selectively absorb over the ensuing years, considering that I was a full time judge who saw relatively few cases in which to directly apply this information. Taking my little show on the road, I secured CLE credit authorization for a lawyer’s course, and taught at local bar associations and groups like the Florida School Board Attorney’s Association. I also put together eDiscovery courses for the Florida Conference of Circuit Judges, along with University of Florida professor Bill Hamilton as a co-instructor. Meanwhile, as I judge, I rotated from the circuit civil to the family law and domestic violence divisions. Rotation allowed me to learn firsthand about dealing with electronic discovery and evidence in a variety of types of cases, though honestly there were few really juicy eDiscovery issues in my cases.

I am now “retired” after 24 years as a civil trial lawyer and more than seven years on the bench. However, I am active on Florida civil rules committees, a subcommittee of the Florida Supreme Court on public access to electronic court records, and the Florida Standard Jury Instruction Committee. Personally, I would like to see electronic discovery rules adopted in Florida, and I have been working with the Subcommittee for eDiscovery rules of the Civil Procedure Rules Committee. I am a reviewer and author for LexisNexis®, The Florida Bar, and others. But most rewarding to me, I remain a legal educator at courses for The Florida Bar in the Florida Judicial colleges.

Challenges for State Court Judges as Opposed to Federal Court Judges

Because a judicial officer makes important rulings on discoverability and ultimately the admissibility of electronic evidence, it is a mistake to not account for the abilities, propensities, and preferences of the judicial officer. In an ideal world, all judges would be knowledgeable, professional, and consistent with each other; i.e., fungible. However because state court judicial officers are human beings sitting in large and small jurisdictions on county, circuit, and appellate courts, there will be a wide variance of experience and comprehension of electronic discovery issues than one would find in federal courts.

Consider also the job distinctions between state and federal trial judges. In federal court, the jurisdiction is, by definition, limited, the district judges are appointed for life, and the able and learned federal magistrates now deal every day with electronic discovery issues. There are specific federal rules governing electronic discovery, nationwide and local, and judges and magistrates add to the body of precedent with written opinions as issues emerge or existing rules need to be enforced or reinforced through sanctions.

In contrast, Florida state court cases are presided over by circuit and county judges who are elected for finite terms and who rotate from one assignment to another every two years more or less. A Florida circuit judge will likely serve in civil, criminal, family, juvenile dependency, juvenile criminal, and possibly probate assignments over a period of 7-10 years. For example, in my seven years as a judge, I was assigned to felony criminal, circuit civil, probate, family and domestic violence divisions. Rotation of judges is mandated by the Florida Supreme Court for a number of valid reasons, but there are pros and cons to such a policy. Compliance with the requirement is not universal in all Florida circuits, as some Chief Judges vary the assignments to meet local or individual needs. However, the policy is prevalent and carries the significant impact of requiring judges to master many areas of law and procedure.

Rotation also means that a civil case that takes 3-4 years for discovery and eventually goes to trial may see two or more judges before conclusion. This means it is less likely that a judge will be familiar with a case and counsel at any given hearing or trial.

A handful of Florida counties have commercial divisions, but in most jurisdictions, commercial cases are assigned to circuit civil trial judges who will be handling a docket that includes every civil type of matter from Administrative Appeals to Zoning and from trip and fall personal injury cases to eminent domain. Only a few jurisdictions in Florida have magistrates available to handle electronic discovery issues. This means that most trial judges will likely be doing research and deciding discovery issues, as well as trying cases. Given current budgeting issues in Florida, vastly expanding the number of magistrates is unlikely to occur in the near future, but I could be wrong about that. I am no expert in court administration and economics, but it appears to me that using magistrates specializing in resolution of discovery issues is efficient, effective, and economical.

Unlike federal court, precedent from the trial or circuit court level is rare in Florida state court. State court trial judges rarely write opinions on discovery matters, and when they do write the occasional opinion, few are published. Most cases must reach the appellate level to be published, and then only some cases result in written opinions. As a result, Florida has only a handful of published electronic discovery cases. For a discussion of per curiam affirmed opinions in Florida, see Judicial Management Council, Final report and Recommendations: Committee on Per Curiam Affirmed Decisions (May 2000). This not only takes away the opportunity for persuasive case analysis from peers, it dampens the opportunity to publish sanctions cases, thereby reducing the ability to “send a message” about improper conduct to persons and organizations outside a given case, including other judges. (More on that below).

In sum, Florida judges have new areas of substantive and procedural law to master before they take on each division. They are less likely to be intimately familiar with their cases as they rotate from division to division. They have seen less electronic discovery cases in their experience, they have fewer rules and precedent to go by, and the system for resolving discovery issues is not tailored to deal with an onslaught of complicated discovery issues. Yet, I am optimistic that state court judges will overcome these challenges. Why? Read on.

Educating Judges

Much has been written in these pages about the need for teaching eDiscovery to law students and to lawyers. Judicial education needs emphasis as well. By and large, Florida judges are hard-working, professional, and educated in one of the best (if not the best) state judicial education systems in the country. Judicial education teachers in Florida are the judges themselves along with guest instructors under the auspices of the Florida Supreme Court and with the assistance of the staff of the Office of the State Courts Administrator (OSCA). Florida state court education as is structured and effective. Florida has two one-week sessions of New Judges’ College for incoming judges each year; the weeklong College of Advanced Judicial Studies for selective specialized educational courses, and courses put on by the Conference of Circuit Judges, Conference of County Court Judges and the Appellate Judges Conference.

Recently, the Supreme Court approved credit for Regional Judicial Education put on by local Judicial Circuit using Florida certified judicial instructors and state resources and funds. Judges must maintain certified CJE credit, the vast majority of which must be obtained in the foregoing schools as opposed to national or alternative judicial education courses. Judges may also attend Lawyer CLE and national judicial education courses, though funding for such courses is understandably limited these days. The teachers in Florida judicial colleges are vetted, intensively trained in adult education techniques, monitored, and rated. Guest instructors (like Ralph Losey, Bill Hamilton, and Ron Hedges) are carefully selected for quality, effectiveness, and compliance with adult education principles.

Electronic discovery has been offered statewide in Florida courses for circuit civil and family judges in 2007 and again at the College of Advanced Judicial Studies as a one day course in 2010. But the number of judges attending such classes is capped. For that reason, I have also taught the subject in Regional Judicial Education (a new concept tried last year for economy in travel costs) and locally in my circuit. Judges have only so much time to take courses, and there are mandatory courses for some assignments and a great deal of information and updating to do every year, not to mention coming up to speed when transferring to a new division. Judges self-select the non-mandatory judicial-education courses, and a subject like electronic discovery may be regarded as an enrichment course to be offered and taken after more substantive courses. I do not agree with that perception, which may change once judges see more electronic discovery issues in court and understand the difficulty of the subject matter.

I have mentioned above the many jurisdictional areas that state courts judges must be able to master. In my personal view, judges in all divisions must be prepared to handle electronic discovery because it is likely to appear in most any type of case these days. However, the diversity of assignments creates some obstacles for judicial education. First of all, as mentioned above, learning new areas of law is difficult and takes time and formal courses. I know. I was a civil trial lawyer for more than two decades, so my first bench assignment (felony criminal) was a challenge. After a while I got the hang of it. But then I was assigned to probate and civil, and then I subsequently rotated to family after five years on the bench. Family law (dissolution, guardianship, adoption, domestic violence, etc., etc.) was so diverse and so much to learn, I felt like a brand new judge when I started that assignment. Learning family and staying current on everything else while keeping up with a docket and administrative judge duties took time and burned up many of my education hours and personal study. Most Florida state court judges face the same challenges of learning new, vastly different legal areas while also keeping up with changing law and trends.

For the obvious limiting reasons set forth above, Florida judicial education in eDiscovery to date has been generalized and introductory rather than comprehensive, detailed or practical. In an ideal world, judges should be learning aspects of eDiscovery law and issues that affect their division rather than broad brush general concepts. But obviously most judges need to master a basic understanding of the digital world and the eDiscovery landscape first. Getting stair step courses is difficult when education is done in one-half to one day increments months apart and the learners may or may not be able to attend consecutive learning events. Yet Florida is taking the right steps. For example, next summer we will have a course on Admissibility of ESI, in which those who took previous courses can build on what they learned this year and gain some specialized information they can take right into the courtroom. Other positive notes: when we hold eDiscovery courses in Florida judicial education, they fill to capacity, so the judges understand that they need this stuff, and our instructor quality packed good learning experiences into the time allotted.

However, getting the judges into ESI courses is only part of the equation. Occasional classes cannot accomplish the job. Accordingly, education on electronic discovery law remains largely the responsibility of judges themselves in self-study or of the lawyers appearing on a case-by-case basis. The task of teaching judges eDiscovery in memoranda and at hearings is not insurmountable. Medical malpractice, elder abuse, and antitrust lawyers are used to teaching the judge their particular specialties during a case. Suggestions for effectively doing that appear below.

For the Florida judge and lawyer trying to educate themselves, there are few comprehensive writings are available about electronic discovery in Florida state court, with some exceptions. Ralph Losey and I recently did a chapter on electronic discovery in Florida state court for the 2010 version of the Florida Handbook on Discovery Practice. The Handbook is a practical resource prepared by the Florida Bar Trial Lawyers Section and the Circuit and County Judges’ Conferences. The Handbook serves as a brief but useful desktop reference for judges (and lawyers) on procedural, legal, and ethical guidelines for discovery in Florida. See Handbook on Discovery Practice, p. 97 (The Florida Bar 2010) found free as a .pdf at http://www.flatls.org/.

Bill Hamilton and I are toiling on a book hopefully available next year on Florida electronic discovery. We hope it will be comprehensive and practical and hopefully beneficial to lawyers and judges trying to navigate eDiscovery in a state without specific electronic discovery rules. For now, Florida state court learners must find information in a vast and somewhat unstructured world of information. As a start, thanks to the generosity of Ralph Losey, for the past two years Florida Judges in the New Judges College Circuit Civil track received copies of Ralph’s latest book, as did those who attended the AJS eDiscovery Course this year, which included Ralph Losey, Bill Hamilton, and Ron Hedges on the faculty. Also, I personally steer judges to Sedona Conference®, which was my starting point and remains my touchstone.

Education helps, and the judges who take eDiscovery courses appreciate them. But for the time being, Florida lawyers and judges must figure out electronic discovery issues on a case by case basis armed with standard discovery rules, a few Florida cases (some of which are quite good, by the way), and the standards, practices, and suggestions from federal court, other state jurisdictions, and such solid legal thinkers as the Sedona Conference. Small wonder that unofficial surveys of the couple hundred judges who have taken one or more of the aforementioned three courses virtually unanimously favor specific electronic discovery rules for Florida state court.

What Judges Want (and Expect)

Consider the following suggestions for effective electronic discovery advocacy before Florida state court judges (and perhaps elsewhere). Practitioners should realize that the judge in state court is not likely to be as knowledgeable and current as a federal magistrate. The exceptions experience-wise may be the judges and magistrates who serve or have served in the commercial divisions in Hillsborough, Broward, Dade, and Orange Counties. These Florida circuits with large metropolitan areas have created business or commercial litigation courts with special local administrative rules and processes designed to handle bigger, lengthier, and more complicated cases, including local ESI rules. These judges see more ESI and have prepared themselves for discovery and admissibility of ESI. Otherwise, the chances of encountering a Florida state court judge in a given case with the knowledge and practical experience roughly comparable to the average federal magistrate or federal district judge are slim to nonexistent. Plan your briefs, memoranda, and arguments accordingly.

Be Prepared

Judges want to do the right thing, which is to achieve justice. They cannot do so if they are not informed on the law. Be prepared to give the judge all the information and guidance needed to rule correctly. With electronic evidence issues, informing the judge involves not just the law, but imparting a sufficient understanding of the digital world. Reaching the right decision in eDiscovery requires listening carefully and choosing between well-prepared, honest presentations from both sides.

Do not rely on the judge to make your case for you. Judges are not supposed to do that. Judges like me who tried cases for a living before going on the bench cringe inside when lawyers make tactical mistakes that threaten to run the case aground, but even the most compassionate judge must keep their hands off the lawyers’ tillers. However, that does not include accepting representations of the law that the judge knows or determines to be false. More to the point, it is likely state court judges in the short run will not be experienced enough in technology and electronic discovery issues or familiar enough with your case during the discovery stage to see through subterfuge without guidance. If one of the lawyers is unprepared to deal with the issues or to articulate a position, achieving justice will be difficult.

Be a Teacher

For me, electronic evidence and admissibility in Florida state court actually follows the common sense application of discovery and evidentiary principles that have been in force and effect before the emergence of the digital information age. Current electronic discovery rules are based on foundational discovery principles with an emphasis on encouraging early lawyer interaction and cooperation. The judge simply needs to understand the unique characteristics of ESI in a given case to properly apply traditional discovery principles and law. Counsel and your expert witnesses should be prepared to debunk the clutter and complexity, and to help the judicial officer apply sound discretion in the context of the case. You can do that. Trust that if you do your job, the judges will get it right. See, e.g., Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., Case No. 502003-CA-005045XXOCAI (15th Jud. Cir. Mar. 1, 2005) (Judge Elizabeth Maass sanctioned a party for destruction of electronic records in a securities case when litigation was reasonably expected and when the records were required to be kept for two years by federal regulation).

Get Good Communicators as Testifying Experts

In one antitrust case that I defended as a trial lawyer, we had a consulting economist expert prepare our testifying expert, a Florida State University economics professor, on how regression analysis was misapplied by the opposing expert in our case. The professor, a great communicator, literally “taught” the jury as he testified, which our consulting economist was not adept at doing. One of the biggest challenges for counsel and IT personnel in the electronic discovery arena is communicating with each other. Remember, the judge is even a step further away from your case, and communicating with the judge is even more challenging and time-limited. It is your job to ensure your witness is up to the task so the hearing time is used wisely and the judge “gets it.”

Know Your Judge

It is always a good idea to find out as much about your judge as possible before you appear before them. Some judges have been in family, probate, criminal, or juvenile divisions for much of their time on the bench. Others have recently ascended to the bench from practice areas in which electronic evidence was not an area of interest or application. Most are still of an age that personal and business computers surfaced later in their lives so they have not fully embraced technology. Plus, judges in Florida may sit in such diverse assignments that it may be years before they must handle a case involving electronic evidence, and there are just not a great number of cases with prominent electronic discovery issues in Florida state court yet. If the judge has a track record on electronic discovery, it helps to know that. Remember that discovery decisions by the judge are done within a range of judicial discretion. Knowing a judge’s limits, propensities, and discretionary tendencies can help.

About the Blogger

Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he is in charge of Electronic Discovery. All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.

Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of Electronic Discovery Best Practices, and e-Discovery Team Training, an online education program that arose out of his five years as an adjunct professor teaching e-Discovery and Evidence at the UF School of Law. Ralph is also publisher and principle author of this blog and many other instructional websites.

Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using artificial intelligence, and also in general AI Ethics. issues. Ralph was the only private lawyer to participate in the 2015 and 2016 TREC Recall Track of the National Institute of Standards and Technology and prior to that competed successfully in the EDI Oracle research.

Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management. Ralph also received the "Most Trusted Legal Advisor" industry award for 2016-17 by the Masters Conference. His full biography may be found at RalphLosey.com.

Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.

Sedona Principles 3rd Ed

1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.

4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.

12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.

13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.

14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.